Monday, February 25, 2013

The NCAA and the Leaking Dike

The Southeast Texas Legal Journal reports that a corporation set up by Johnny Manziel, the Texas A&M quarterback and 2012 Heisman Trophy winner, has filed suit against an individual infringing upon his trademark:
Texas A&M University football star and Heisman Trophy winner Johnny Manziel has filed a lawsuit claiming an individual is infringing on his trademark “Johnny Football”nickname in order to sell shirts.

During the 2012 college football season, Manziel licensed the mark “Johnny Football.” In November 2012, he discovered that the defendant was using his trademark to sell shirts which stated “Keep Calm and Johnny Football.”

The defendant is accused of trademark infringement under the Lanham Act, Texas unfair competition, including right of publicity, palming off and misappropriation.

JMAN2 Enterprises is asking the court for injunctive relief and an award of damages for the unlawful sale of goods, exemplary damages, attorney’s fees, interest, and court costs.
The lawsuit has invited speculation as to whether there is a NCAA "loophole." As one observer writes:
[T]he NCAA recently notified Texas A&M that, "a student-athlete can keep financial earnings as a result of a legal action."

You see the loophole you can drive a Rolls-Royce through yet?

Manziel can't directly profit off the sale of licensed products featuring his likeness, but he can pocket any proceeds that arise from a trademark lawsuit. Which is basically the same thing.

Raising this interesting question, what's to keep a bunch of Texas A&M boosters from intentionally infringing on Manziel's trademark, being sued for doing so, and then settling out of court for hundreds of thousands of dollars in legal payments to Manziel?


In other words, isn't this ruling a license for boosters to legally pay Manziel to play college football?

Several years ago I explained that there may be a perfectly legal and appropriate way to allow NCAA athletes capitalize on their intellectual property under the Bayh-Dole Act.
If there is anyone who should be empathetic with the quandary of student athletes it should be university faculty. For many years university faculty expressed concerns that their research with commercial value was simply being given away due to their status as university researchers. The issue became a matter of national importance as Congress became concerned about technology transfer and the incentive structure in the modern university, no longer considered an ivory tower but an engine of U.S. economic growth. In 1980 Congress passed a law that allowed universities to hold the intellectual property rights to inventions by their faculty and to set up profit-sharing schemes with their faculty.

Here at CU, income resulting from patents derived from research performed on campus is shared between the inventor and the campus, with 25 percent going to the researcher personally and 75 percent to the university (with one third of that devoted directly to the researcher`s work). Not every faculty member files patents and fewer still see any financial gain, but the rewards can be significant. One research group`s patents at Columbia University resulted in $790 million in revenue.

When Bob Williams, VP of communications for the NCAA, was recent asked by ESPN if college athletes should receive a cut in the sales of jerseys bearing their name he responded, "I think you have to remember whose jersey it really is. The school name, the colors, that`s really the school`s and the institution`s property. It`s hard to say that the student-athlete 'owns` that jersey or it`s his jersey. But that intellectual property is owned by the institution." This is exactly the sort of convoluted argument that led faculty to demand a share in the profits that resulted from their unique contributions to a university.
The NCAA is facing a growing number of leaks in the dike that it has build to contain the "student-athlete."  I would guess that it will soon run out of fingers.

Friday, February 22, 2013

Landis on Fencing Sponsor's Equipment to Buy Drugs for Doping

In the unsealed lawsuit filed by Floyd Landis againstlance Armstrong, joined by the US Department of Justice, there is this allegation (here in PDF):
In approximately April 2004, after the Paris-Roubaix race, Mr. Landis attended dinner at a restaurant in France, with defendant Bart Knaggs, Geert Dueffler, and others. During the meal, Mr. Landis expressed concern about a shortage of equipment that was resulting from team management selling the bikes that were being provided by sponsors for the riders. In the heated conversation that ensued, Mr. Landis commented to the effect that, while Mr. Armstrong was flying around in his own jet, the other riders should not be facing problems just obtaining the proper bike.

In response to Mr. Landis’ complaint, Mr. Duffeleer explained that the team management needed to sell the bikes to finance the doping program, as they needed cash for the doping program, and the team could not just list doping as a cost item on standard expense reports.
Selling sponsored equipment to buy drugs -- and that is not the worst you'll find in the document.

Thursday, February 21, 2013

Lex Sportiva Jurisdiction and Lance Armstrong

Yesterday, Lance Armstrong announced that he would not meet with the US Anti-Doping Agency (USADA) to testify under oath about doping in cycling. An Armstrong representative explained:
[F]or several reasons, Lance will not participate in Usada’s efforts to selectively conduct American prosecutions that only demonize selected individuals while failing to address the 95 percent of the sport over which Usada has no jurisdiction.
Does this rationale make any sense? In short, no.

USADA is recognized by the US Congress in Section 644 of Public Lay 107-67 as follows (PDF):
The Congress of the United States recognizes the United States Anti-Doping Agency (USADA) as the official anti-doping agency for Olympic, Pan American, and Paralympic sport in the United States.
That 2002 law was reinforced in 2005 when the US Senate ratified the International Convention Against Doping in Sport. Among the provisions of that treay is the following:
[T]he Convention explicitly allows governments to utilize the efforts of antidoping organization (such as USADA) or other sports authorities and organizations (such as the USOC) to meet any obligations under the Convention.
Which athletes are covered by USADA's jurisdiction?  Again, the treaty ratified by the US Senate provides the answer:
Article 2(4) contains two definitions of  "athlete."' The first is for doping-control purposes and states as follows: "Athlete means . . . any person who participates in sport at the international or national level as defined by each national anti-doping organization and accepted by States Parties and any additional person who participates in a sport or event at a lower level accepted by States Parties.'' For the United States, USADA is the national anti-doping organization and thus, the term "athlete'' for purposes of doping control in the United States means any athlete who is determined by USADA to be subject to or to have accepted the World Anti-Doping Code.
USADA is what is called a National Anti-Doping Organization by the World Anti-Doping Agency, and thus has responsibility to:
National Anti-Doping Organizations (NADOs) are responsible for testing national athletes in- and out-of-competition, as well as athletes from other countries competing within that nation’s borders; adjudicating anti-doping rules violations; and anti-doping education.
The USADA Reasoned Decision explains why Armstrong falls under its jurisdiction (PDF):
At all relevant times, Armstrong was required to maintain membership in USA Cycling
in order to participate in national and international competition. As a result, he agreed to comply with USA Cycling’s rules, which explicitly incorporate the USADA Protocol.
It continues:
The USOC, USADA and UCI are signatories to the World Anti-Doping Code and bound by its provisions. Article 15.3 of the Code provides that “results management and hearings shall be the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection (or, if no Sample collection is involved, the organization which discovered the violation).” Under this plain language, the Code gives results management responsibility for non-analytical violations to USADA in any case where it “discovered the violation” by a U.S. Athlete.
If that is not enough, Armstrong sued in US court challenging USADA's jurisdiction. He lost.

Does USADA have jurisdiction within the sporting world to oversee Lance Armstrong's sanctions, including bargaining with him over testimony? The answer is as simple as whether Armstrong was ever a member of USA Cycling (he was) and holds a US passport (he does). In short, yes.

It appears that Armstrong has chosen to ignore lex sportiva altogether and take his case to the court of public opinion.  No doubt this is a strategy taken in anticipation of finding himself soon in a court of law.

Tuesday, February 19, 2013

Does Uncertainty of Outcome Define Sport?

A common argument against match fixing, doping and other corrupting influences in sport is that such activities detract from uncertainty in outcomes, which is taken to be a defining feature of sporting contests. Here I argue that the notion of "uncertainty of outcome" as a criterion to be used in identifying corruption is highly problematic both empirically and theoretically.

McClaren (2008, here in PDF) offers a standard view of the role of uncertainty in sport and its relationship to corruption:
Corruption attempts to alter this equation and make sport more of an entertainment event with a greater certainty of outcome. This equation is altered when corruption is centered on match fixing or gambling; biased refereeing; and, to a similar but different degree, when sporting results are affected by the use of performance enhancing drugs. Corruption, in any of the foregoing forms, robs sport of its essential feature of uncertainty of the outcome and accelerates its spin into the forum of entertainment, and thus it no longer is sport. Corruption gnaws away at the fundamental foundations of sport and therefore of sporting integrity. It becomes essential to protect that integrity to ensure that sport is free from any corrupt influence that might cast doubt over the authenticity and unpredictability of the sporting result.
Let's take a step back and ask, what is uncertainty anyway?

In The Honest Broker I define uncertainty as follows:
Uncertainty means that in a particular situation more than one outcome is consistent with our expectations. An “outcome” simply refers to an actual situation (i.e., some realized or true condition) in the past, present, or future, such as the number of whales in the ocean, the current temperature you feel on your skin as you read this sentence, or the roll of a die.
In sport, an “outcome” might refer to any number of things. It could be victory in a contest, the result of individual events within a contest (a serve, a pitch to a batter, a corner kick, a field goal attempt, etc.), the result of a series of contests (a league winner or tournament champion) or something else. From this perspective, sport is indeed a competition over uncertainty in an effort to reduce the possible scope of outcomes in a particular direction. A pitcher wants to make an out certain, a batter wants to make getting on base certain.

From this perspective on uncertainty, can we use the notion of "uncertainty of outcome" as the basis for identifying corrupting influences in sport?

Let's first ask an empirical question. Do spectators of sports value uncertainty as the defining characteristic of sport? If this value is strong, one could make a utilitarian argument against efforts to reduce uncertainty, based on the subjective perceptions of stakeholders in sporting events.

On the face of it one might expect the evidence to be mixed. After all, audiences routinely turn out to see performances such as Romeo and Juliet and Zero Dark Thirty, despite knowing that there is no uncertainty in the outcome or the events within the story. Perhaps, however, sports are different?

In a 2003 review Stefan Szymanski found the evidence was indeed mixed (here in PDF): 
Overall, of the 22 cases cited here, ten offer clear support for the uncertainty of outcome hypothesis, seven offer weak support, and five contradict it. Given that even supportive studies on the issue of match uncertainty seem to imply that attendance is maximized when the home team is about twice as likely to win as the visiting team, the empirical evidence in this area seems far from unambiguous. This is remarkable given the weight that is placed on this argument in policy making and in antitrust cases. Given that even quite unbalanced matches, championships, and leagues can be attractive to consumers, a more nuanced approach is called for.
In addition to the lack of strong evidence in support of the "uncertainty of outcome" hypothesis, there are also fundamental theoretical problems with the uncertainty of outcome hypothesis.

At the start of a fair match, opposing sides wish to reduce uncertainty of outcome such that certain outcomes are ruled out (e..g, their opponent proving victorious) and others are inevitable (e.g., a victory for themselves). Right away this shows that a definition of corruption as an effort to rob sport of uncertainty has the unhelpful effect of defining the actions of would-be corruptors in the exact same manner that we define the actions of fair competitors:  

Both would-be corruptors of and fair-minded participants in sport seek to reduce uncertainty of outcome. Consequently, it is not the effort to reduce uncertainty or its consequential reduction that is problematic, it is the means employed.

Ryan Rodenberg, a smart professor of sports law at Florida State University finds it problematic that existing laws (in the United States) cover only gambling-related efforts to influence uncertainty of outcome. Last week he wrote over at The Atlantic:
Uncertainty of outcome is also the reason American sports fans should take a moment to pause when commercialized sports are juxtaposed with the Quiz Show Scandal from more than 50 years ago. The web of laws applicable to sports, such as the Sports Bribery Act of 1964, only prohibits gambling-related corruption. There is no federal law explicitly preventing the clandestine manipulation of sporting events to enhance suspense. This gap is problematic. As with certain televised quiz shows decades ago, the in-game action of sporting events can be contrived in profit-maximizing ways. The federal law passed in the wake of the Quiz Show Scandal does not explicitly include televised sports; it only forbids deception of the public in connection with contests of an "intellectual" nature. Wheel of Fortune, Jeopardy!, and Who Wants to Be A Millionaire are covered by the law. Football, basketball, and baseball are not.
I'm not so sure. I get what he is arguing, however, I would argue that the existence of manipulation is not necessarily problematic, much less an indication of a corruptive influence. Sport after all are nothing if not a contrived activity.

The only reason that match-fixing and doping are prohibited -- sometimes by the constitutive rules of sporting contests and sometimes by domestic or international law -- is because people have decided to put rules in place proscribing certain actions. Corruption in sport is whatever is decided to be corruption in the constitutive rules of the contest.

Unfortunately, efforts to reduce uncertainty in sporting outcomes do not provide a clear basis for identifying corruption. Ultimately it is the means employed to reduce uncertainty that matter, and will vary from sport to sport, jurisdiction by jurisdiction. This of course is one important reason why rooting out corruption in sport proves so difficult. I will follow up with discussion of specific cases in future posts.

Wednesday, February 13, 2013

USADA's Conflict of Interest Problem

When it was revealed that Lance Armstrong donated money to the International Cycling Union and allegedly offered a donation to the US Anti-Doping Agency, Travis Tygart (USADA's CEO pictured above), had this to say:
Disgraced cyclist Lance Armstrong attempted to donate around $250,000 to the US Anti-Doping Agency (USADA), the head of the agency says in a 60 Minutes episode that will air January 9. The television program distributed Tygart's comments in a news release on Tuesday ahead of Wednesday night's airing of the interview.

USADA chief executive Travis Tygart said he was bowled over by the "totally inappropriate" offer from one of Armstrong's representatives in 2004, which he immediately turned down.

"I was stunned," Tygart said in the interview. "It was a clear conflict of interest for USADA. We had no hesitation in rejecting that offer." Asked if the offer was in the range of $250,000, Tygart told the interviewer, "It was in that ballpark."

Tygart, who described Armstrong's heavy-handed tactics as being similar to the "Mafia," denounced a $100,000 donation Armstrong made previously to the International Cycling Union (UCI).
Tygart is of course correct. There is a clear conflict of interest in having an athlete pay an organization that is expected to oversee that athlete's conformance with the organization's rules. We learned about the perverse incentives created by such relationships in the recent financial crisis with cozy relationships of ratings agencies and banks.

So it was with some surprise that I have learned that USADA has engaged in the same sort of practices. Here are the details.

The sport of boxing is governed by multiple organizations. Among them are the International Boxing Association (AIBA) which oversees amateur boxing of the sort that occurs in the Olympics. There is also the World Boxing Council (WBC) which is one of a panoply of organizations that oversee the professional version of the sport.
The AIBA, as an Olympic sport, falls under the provisions of the WADA (World Anti-Doping Agency) Code (details here in PDF) which details the rules and sanctions associated with taking prhibeted performance enhancing substances. US boxers who expect to participate in the Olympics, or competitions held under the Olympic movement more generally, are thus subject to the rules and regulations of USADA as provided by the US Congress. In contrast, US boxers who fight under the provisions of the WBC may have absolutely nothing to do with the Olympic movement and thus fall completely outside the framework of WADA and USADA (details here in PDF).

So it was with some surprise to learn recently that a boxer who participated in a WBC sanctioned fight in new York last October, Erik Morales faces sanctions by the USADA for failing a drug test (for clenbuterol). Despite the failed test, the fight went on, Morales lost and subsequently retired. (Lots of details here.)

USADA's odd role was highlighted in the headline of an article published yesterday: "Morales Faces USADA Ban, But From What?" The article explains:
At this point, many in the boxing industry don't consider USADA's ruling to carry much impact, if any at all.

"Morales announced his retirement after the fight in New York and said that he was only going to be fighting in Mexico, so they can probably sanction him all day long and it won't mean anything," said one promoter who operates regularly in Mexico.

"I can tell you this much: I've yet to see a suspension in the United States that they really recognize that much, if at all, down in Mexico. Have you ever seen a suspension in the U.S. be recognized in Mexico? You can draw your own conclusions."

What about in the United States?

"Any suspension would have to come from an athletic commission with jurisdiction," said English. "The regulation of boxing and professional boxing, by law, is charged to the athletic commission in the United States, and not to USADA."

Top Rank CEO Bob Arum was even more emphatic.

"It means nothing in Mexico or the United States either," said Arum. "These people have no authority, so it doesn't mean a thing."
An obvious question is why USADA was involved with the WBC in the first place?

USADA has no jurisdiction over the WBC, either under WBC rules or more broadly under any federal provisions or the New York State Athletic Commission (polices here). The NY Commission provides for blood tests independently of USADA. In this circumstance, the USADA drug test of Morales apparently has no meaning and USADA no standing.  As expressed at the time:
So what was the point of it all? Why have a drug-testing program if testing positive means nothing? If commissions are going to stand on the sideline, will failing a drug test become like missing weight: an inconvenience that can be smoothed over with some extra money changing hands?
Apparently Morales is not alone -- a number of professional boxers have contracted via their promoters directly with USADA to conduct "Olympic style" drug testing. USADA proudly announced the first of such relationships with this press release (in PDF). From the boxers perspective I guess the point is to show that the boxers are clean (whoops).

USADA contracts directly with the fight promoters -- that is those people who are arranging the fight, representing the boxers and who stand to make a lot of money. In the case of boxer Floyd Mayweather, USADA was paid by his promoter a reported $100,000 per fight. Can there be any surprise that a positive drug test in the Morales case did not lead to a cancellation of the fight?

Of note here is that clenbuterol is a prohibited substance which may lead to sanctions according to the NY State Athletic Commission (see here in PDF). Further, the Association of Boxing Commissions decided last year to follow the WADA Code. However, USADA was contracted to work with the fight promoter, and not the NY State Athletic Commission. has a look at the contractbetween USADA and the promoter as well as other exchanges and reports the following:
[I]n no clause, rule or any other place found in several Master Agreement contracts obtained by, between Golden Boy Promotions and the United States Anti-Doping Agency regarding anti-doping testing for their fighters are the words “State Athletic Commission” used. No variation of those words is used. It would appear, after careful perusal of these varied versions of the same Master Agreement, that this alliance between Golden Boy and USADA potentially takes the commission completely out of the loop.
A sharply worded letter from the promoter of the Morales fight to Travis Tygart accuses the organization of hypocrisy, overstepping its authority and a failure to disclose the test results to the governmental body which actually has such authority (the NY Commission) with jurisdiction over the fight (here in PDF). Of course, if USADA had no relationship with the NY Commission then it would not have any reason to share the test results. So USADA is way out on a limb operating far outside its Congressional mandate, apparently making up rules as it goes along and inviting the perception (at least) of a compromising conflict of interest.

What a mess.

So USADA finds itself in a situation where it is being paid directly by a fight promoter to test an athlete who does not fall under USADA's jurisdiction. Nonetheless, USADA announces sanctions and finds itself embroiled in a messy public spat. However this situation works itself out in the boxing world, the fallout for USADA could be much broader, now that it is much more in the public eye.

For USADA the lessons are clear. First, practice what you preach. Second, do not engage in a contractual relationship with individual athletes. Third, stick to your formal obligations under the mandate provided by the US Congress within the Olympic movement. If that mandate is to be expanded, request that such changes be formally adopted in the USADA governing charter.

USADA scored a big victory with its Reasoned Decision against Lance Armstrong. However, that does not mean that USADA is free from following rules or good practices. The mess that USADA finds itself in related to boxing suggests that the organization has some work to do to shore up its practices.

Salary of Travis Tygart, USADA

In doing some research I came across the 2010 IRS 990 Form for US Anti-Doping Agency. In it I was surprised to learn that its head, Travis Tygart received $335,000 in salary and benefits in 2010 (p. 36, here in PDF).

Tygart's salary is of note because USADA is a quasi-public non-governmental body which is almost entirely funded by the US taxpayer. For comparison, the Secretary of Defense (along with other members of the cabinet) is payed $199,700 per year. The state of New York has recently proposed capping the annual salary of non-profit CEOs that rely primarily on public funds at $199,000.

Is Tygart's salary too high? Too low? I'm not sure, but given USADA's reliance on public funds, it does invite scrutiny. More on that coming soon.

Tuesday, February 12, 2013

Souring Relations between FIFA and its IGC

Writing at Forbes, Alexandra Wrage, a member of FIFA's Independent Governance Committee, has a hard-hitting piece on the dismal state of affairs at FIFA. She writes:
The recommendations [of the second IGC report] include three points that illustrate the distance between FIFA’s current position on governance and widely established “best practices”.  To be clear, FIFA has not rejected these provisions, they’ve simply failed to implement them to date.   The IGC has no means by which to compel change, yet FIFA describes itself as being bullied by the advisory committee.  Predictably, the discussion has shifted – on both sides – to the public forum.    The IGC must consider how much it can accomplish; FIFA must decide how much it values good governance, the reform process and public opinion.
She concludes:
FIFA is producing governance case study material that will be discussed for years.  The IGC recommendations make simple, clear sense.   Unfortunately, the background noise about match-fixing, sexism and succession intrigue have overshadowed the very simple, ordinary measures the IGC has recommended.   These recommendations are now at risk of becoming casualties of the political process when their merits are obvious.
The second report of the IGC that she refers to can be found here in PDF. The sorry state of affairs between the IGC and FIFA can be discerned from this rather amazing disclaimer included at the end of the report.
The purpose of this Report is to provide the Executive Committee of FIFA with an independent assessment of FIFA’s governance reform project including specific recommendations regarding the improvement of FIFA’s governance. The information forming the basis for recommendations contained in this Report has been obtained in good faith from FIFA representatives and from interviews with its officials and employees. The information in this Report is, in the IGC’s professional judgment, an accurate presentation and analysis of the information provided to us. However, the authors accept no responsibility for any information that has been withheld, knowingly or otherwise.
The IGC also felts compelled to offer to help:
The IGC offers its active participation in the consultation process up to the Congress in May 2013 . . .
With Sepp Blatter declaring the reform process to be almost completed, it seems unlikely that FIFA will take up the IGC's offer of assistance.  However, I don't think that we have heard the last from the committee or its members.

Sunday, February 10, 2013

Fixing Match Fixing Won't be Easy

By now you've no doubt heard of the big Interpol announcement of a major investigation into match fixing in European football. The New York Times reports:
[A] European police intelligence agency said Monday that its 19-month investigation, code-named Operation Veto, revealed widespread occurrences of match-fixing in recent years, with 680 games globally deemed suspicious. The extent was staggering: some 150 international matches, mostly in Africa, Asia and Latin America; roughly 380 games in Europe, covering World Cup and European championship qualifiers as well as two Champions League games; and games that run the gamut from lower-division semiprofessional matches to contests in top domestic leagues.
Writing at his blog, Declan Hill, author of The Fix (which I enjoyed a great deal), writes:
 Anyone who tells you that match-fixing is complicated to solve is either ignorant or lying.
I'm not sure what category Declan will put me in, but you can put me in the camp who says that match fixing presents a problem that is incredibly complicated to solve. In fact "solving" match fixing may be the wrong way to think about it -- in all likelihood it can only be contained.

Hill lays out his argument for the simplicity of dealing with match fixing as follows:
It is very, very simple.
Let us take out ‘football’ for the moment and imagine that we are speaking about bank robberies.

There is a gang that is going around the world and robbing banks.  They have stolen money from at least 680 banks in over-20 different countries.

We know the name of the alleged leader of the gang.

We know the address of the alleged leader of the gang.

We know his birth date and his phone number.

Police forces in some of those countries have collected hundreds of pages of evidence against him.

The police forces have gone to the country where he lives with an international arrest warrant and asked the government of that country to arrest him.

His national government has refused to arrest him.

They have come up with a variety of responses, ‘not enough evidence’, ‘warrant not valid’, ‘we are helping [but not enough to make any arrests]’, etc…  But basically, they are refusing to act.

It is that simple.
What Hill has overlooked is international law. Match fixing is handled very differently in countries around the world -- in some countries it is not recognized as a crime (e.g., Japan and through at least last fall in Russia). In most countries it is a crime only insofar as it is related to illegal gambling or fraud.

Even in Europe, a detailed review of the laws in place across the continent prepared for the European Commission found that international conventions at the global or European level do not provide a legal framework for the criminalization of match fixing. The report states (here in PDF):
As far as the international and European framework is concerned, international conventions on corruption do not impose the criminalisation of acts related to the manipulation of sport results. The most relevant provisions in the United Nations and Council of Europe conventions – those on private corruption - are not mandatory, thus they do not create a direct obligation for signatory parties. In the EU, the manipulation of sports results, in principle falls under the scope of the Framework Decision on Private Corruption. However, the extent to which this applies to all kinds of betting motivated cases, in particular as far as non professional sports are concerned is not clear.
Within Europe the review found a "lack of a coherent and comparable legal basis between Member States" which creates obstacles to enforcement, cooperation and sanctions. Further, match fixing is in an embryonic legal state:
Examples of criminal jurisprudence in relation to the manipulation of sport results are rare. We identified relevant decisions in only nine countries: the Czech Republic, France, Finland, Germany, Italy, Poland, Portugal, Malta and the UK. Nevertheless, there are ongoing investigations in Austria, Belgium, the Czech Republic, Germany, Greece, Hungary, Italy, Malta, Poland, Portugal, Romania, Slovenia and the UK.
Consider one complicated aspect of dealing with match fixing, which would even apply to Hill's bank robber -- extradition. In the case of a match fixer ensconced in, say, Singapore who has fixed matches in several countries in Europe. Calling him to account through existing legal frameworks is difficult to say the least.
Consider that the fixer may not have violated any domestic laws. Think Roman Polanski. Further, the domestic government may or may not have established an extradition treaty with the countries where he may have violated their laws. When nations invoke extradition it brings it the possibility of big-time international politics. Even more -- there are lots of procedural questions, like, which country gets him, anyway? Such questions go on and on.

A 2003 law review by Christopher Joyner looked at challenges extradition in the context of post 9/11 terrorism. You can be sure that if extradition is complex and difficult in the case of international terrorism, then it will also be in international sports offenses. Joyner explains (here in PDF):
Under contemporary international law, no universal rule obligates governments to extradite, or even prosecute, alleged offenders who hide in their territory. Indeed, the international extradition process today operates almost entirely through bilateral treaties, and certain conditions such as the nationality of the offender, concern over the fairness of a foreign trial, or the supposed political nature of the offense can obstruct the extradition process. Moreover, the international extradition system is neither comprehensive nor complete. No state has extradition treaties with every other state...  The United States, for example, has extradition treaties with approximately 100 states, although today there are at least a total of 193 states in the international community. 
As an example, the image below shows the countries with with the UK has extradition treaties. You'll note the large swaths of grey representing countries with which the UK has no extradition treaty. There are plenty of places around the world for a would-be English football fixer to set up shop without much worry about being extradited to the UK.

To contain match fixing requires breaking new ground in both sports governance and international law.

Simple? Hardly.

To its credit, FIFA appears to fully understand these complexities. Sepp Blatter and FIFA’s Director of Security Ralf Mutschke explained:
"In football, a national association can sanction a member of the football family if they are found guilty of contravening the legal, football framework,” [Mutschke] continued. “FIFA’s Disciplinary Code provides the opportunity to extend those sanctions, and impose a life ban.

“But for people outside of football, currently the custodial sentences imposed are too weak, and offer little to deter someone from getting involved in match-fixing.

"FIFA requests that law enforcement bodies continue their engagement, and continue to assist FIFA in the global fight against match-manipulation and organised criminals, even if the investigations are considered complex."

In recent interviews, FIFA President Joseph S. Blatter echoed Mutschke’s sentiments, saying: “We are working here together with the political authorities and also with INTERPOL. What is necessary is solidarity within the football community. Then, when players, coaches and referees are touched by these people they should immediately disclose it, acting as whistle-blowers. Only then can we intervene effectively.

“Outside the football family, it is also time for governments to take the threat of match-fixing seriously and introduce appropriate sanctions as a deterrent, for while a player may be prepared to rish a ban for throwing a match, he will most likely not wish to risk a prison sentence.

“We must lobby governments to introduce legislation of this kind, both nationally and across borders where possible, through countries reaching a common position on this problem.”
What then can be done? The good news is that there are some steps that can be taken to make progress on containing match fixing. This is a subject I'll return to in coming discussions.

Wednesday, February 6, 2013

Mark Pieth Lets Loose

Last April I commented that the odds of a split between Mark Pieth, chairman of FIFA's Independent Good Governance Committee, and FIFA appeared to be increasing. With Pieth's most recent public criticisms of FIFA that split now seems a done deal.

In the SueddeutscheZeitung Pieth lets loose on FIFA and the reform process in a manner reveals deep frustrations with the process. Kier Radnedge reports:
FIFA reformer Mark Pieth is on a collision course with Sepp Blatter, the president who hired him in summer 2011, after an explosive outburst at the obstructions laid in his path.

The Basel governance professor, in today’s edition of the SueddeutscheZeitung, pulled no punches in defiance of a warning from Blatter that reform commission members should not go public with any criticisms which might undermine the credibility of the process.

Pieth, interviewed by Claudio Catuogno, Thomas Kistner and Klaus Ott, attacked – among others:

— European federation UEFA for blocking key reform proposals;

— the manner of the ethics committee’s final despatch of Mohamed Bin Hammam; and

— confusion over the handling of the ISL scandal.

Pieth also railed at the way his four nominations for the role of ethics prosecutor had been blocked, one by one.
If Pieth does indeed split from FIFA it could be huge, as he knows a lot and carries much credibility -- credibility that he has placed at serious risk by taking on the FIFA role. With the FIFA reform process all but over, Pieth is no doubt looking to how his efforts will be received by the broader community, which is yet to be determined. Pieth's assertion of independence deserves support as it cannot be easy. Stay tuned.